A New York federal court has dismissed a lawsuit alleging that customers of Big Lots Inc. were misled by the packaging of Fresh Finds Colombian coffee. Devey v. Big Lots Inc., No. 21-6688 (W.D.N.Y., entered October 12, 2022). The plaintiff asserted that the canisters of coffee she purchased stated that the contents could produce “up to 210” 6-oz. servings, but preparation by following the serving instructions would only yield 152 servings.

“[B]y focusing solely on the instructions for brewing a single serving, plaintiff’s calculation completely overlooks the brewing instructions on the label for larger batches, which offer a significantly higher potential yield. While 1 Tblsp. of ground coffee is recommended for a single serving, larger batches require 20% less ground coffee: ¼ cup (4 Tblsp.) for 5 servings, and ½ cup (8 Tblsp.) for 10,” the court found. “Preparing coffee in batches of 5 or 10 per the label instructions, the 152 Tblsp. of ground coffee that plaintiff alleges the Product contained would yield at least 190 6-oz. servings, a 9.5% shortfall from the maximum of ‘up to 210 suggested strength’ servings indicated on the label – and roughly one third the size of the discrepancy calculated and alleged by plaintiff.”

“While there is no fixed ‘bright line’ as to the precise point where a yield representation for a product intended to be prepared in varying strengths becomes a misrepresentation so material as to mislead a reasonable consumer, I am not convinced that plaintiff’s allegations are sufficient to nudge her claim over that theoretical boundary. Indeed, ‘up to’ statements are generally not construed as concrete promises about a product’s maximum yield, particularly in relation to
products such as ground coffee, for which it is well-known (and as the Product label reflects) that the greater the batch being prepared, the smaller the proportion of product that is necessary to produce a given strength.”

“As such, the Court finds, as a matter of law, that viewed as a whole, the Product’s label would not have misled a reasonable consumer, who followed the instructions on the label, in a manner that the consumer would find to be material,” the court held. “Because all of plaintiff’s claims hinge on establishing the existence of such a misrepresentation, they must all be dismissed.”

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